The signature of the Joint Roadmap on Asylum and Migration by the European Parliament and Council heralds a busy legislative period that could have significant and lasting impact, not only on legislation, but on the direction European Asylum and migration law takes in the future. The proposed large overhaul of the Common European Asylum System (CEAS) seems unlikely to pass in time and the Czech Council presidency is attempting to pass smaller, more consensual pieces of legislation; but according to critics also more problematic in their implications such as the instrumentalization regulation.This regulation, according to some, would make permanently accessible emergency opt out mechanisms, weakening EU asylum law and the international asylum system as a whole.
What is the CEAS and why is it being amended?
According to the European Council the CEAS sets the minimum standards for treatment of asylum seekers and their application procedures around the European Union. Following the 2015 migration crisis the system was deemed to be in need of reform. On the 23 September 2020 the Commission introduced a proposal for a new framework for asylum and migration. Others had already been put forward in 2016, 2018 and 2019 which were mostly integrated in the 2020 package. This new proposal has as objectives: create a common framework for asylum and migration management, make a more efficient system, eliminate so-called pull factors and secondary movements and fight abuse (what constitutes abuse not being specified). The EU is working on a tight schedule, seeking to pass these legal packages by February 2024.
What does the 2020 reform package propose?
Replacement of the Dublin system
According to the European Council, the New Pact of Migration and Asylum would seek better allocation of asylum applications between Member states via a new solidarity mechanism. According to the Parliament, it has four objectives: to create a common framework for the management of asylum and migration, ensure sharing of responsibility via a “new solidarity mechanism”, facilitate the identification of the state responsible for processing the application of the migrant and prevent abuse of the system.
New temporary crisis and force majeure regulation
A situation of crisis or force majeure is understood as one where a Member states’ or the Union’s as a whole asylum system might become overwhelmed. This mechanism provides possibilities for extension of standard granted procedure times as well as the possibility of granting instant asylum status.
The proposed change seeks to add further biometric identifiers to the database including facial images and facial recognition software. It also proposes to allow Member States to use Eurodac data to search third country national or stateless persons not currently applying, found staying irregularly in the EU via a centralised database. It extends its reach to minors, including unaccompanied minors. These reforms would in part bypass the EU’s own General Data Protection Regulation (GDPR).
Establishment of a EU Asylum Agency
The establishment of an EU asylum agency came to fruition in 2019. The new entity describes itself as “a resource for Member States in the field of international protection, with the ability to provide practical, legal, technical, advisory and operational assistance in many formats.” Ultimately the agency strives for a harmonisation of Member States asylum practices.
Establishment of a pre-screening procedure
This would allow for rapid identification of most at risk individuals and more effective return policies. The proposed procedure would include: a health and degree of vulnerability check, a comparison of identity with European databases, a registration of biometric data, and verification that the individual does not constitute a threat to internal security.
Replacement of asylum procedure directive with a regulation and introduction of a qualification and reception directive
These proposals by the Commission attempt to address the differences between Member States. The Asylum Procedure Regulation seeks four things: simplified, unified and faster procedures, the inclusion of elements in the procedure ensuring that the rights of the applicant are respected, the insertion of rules to prevent abuses of the system, and a harmonised rule on safe countries. In regards to the qualifications directive we can establish 6 objectives and measures: increased harmonisation of common criteria for recognition of applicants for international protection (asylum); common analysis of the situation in the country of origin; obliging Member States to go through status reviews when a significant change in the country of origin occurs as well as when status is to be renewed; in case of secondary unauthorised movement the duration for the acquisition of more permanent residence documentation will be reset; standardising the rights provided to recipients of international protection and; increasing the incentive to integrate in the host society. Finally, the reception conditions directive provides minimum reception standards that all Member States should adhere to. There are three main lines of action that will be promoted: All are entitled to healthcare and a dignified standard of living, The European Asylum Support Office will develop a list of reception criteria and self-reliance of the applicant will be increased.
Creation of a permanent EU resettlement framework
The objective is to see a certain number of asylum seekers or nationless persons being resettled onto the territory of the Union every year. The Commission and Council will be in charge of deciding which countries’ nationals will be eligible.
Critiques of the proposed reforms
Criticism has emerged over these reforms, particularly in relation to the rights of asylum seekers – for example, NGOs have raised the alarm over the proposed Eurodac revisions. Furthermore, critics have observed that passing those large overarching changes will be almost impossible to achieve in the designated amount of time. It therefore becomes likely that there will be an attempt to pass small change packages according to the EUObserver; one of which is particularly hard to swallow for many activists.
The instrumentalisation regulation as a symbol of what is to come
It is described as a “final blow to a Common European Asylum System”, according to the European Council on Refugees and Exiles (ECRE). In December 2021 the Commission put forward a plan that would create a permanent mechanism allowing member states to derogate from their obligations under the EU asylum law in situations where migration flows are ‘instrumentalised’.
What is the instrumentalisation regulation?
According to the Commission a “highly worrying phenomenon” has increasingly been observed whereas state actors are creating or facilitating migration flows for political gains. This proposed regulation essentially constitutes a direct response to the actions of the Belarus government and would allow Member States to suspend obedience to their obligations towards migrants and asylum seekers as defined under the CEAS.
What could be dangerous about the instrumentalisation regulation
ECRE and other critics believe that this decision would affect the right to human dignity, the right to asylum, the prohibition of torture and inhuman or degrading treatment or punishment, the right to liberty and security, protection in the event of removal, expulsion or extradition, the rights of the child and the right to effective remedy. This policy would be in continuation of a trend promoting the containment of people at the European border. A collective of NGOs put forward that this regulation would be disproportionate, counterproductive but most importantly misguided. ECRE adds that this system of permanently available derogation threatens the EU legal system as a whole and with it the global asylum system.
However, among EU member states, there seems to be broad agreement with the measure and the Czech presidency appears determined to pass it.
Joint Statement: NGOs call on Member States: Agreeing on the Instrumentalisation Regulation will be the Final Blow to a COMMON European Asylum System (CEAS) in Europe | European Council on Refugees and Exiles